This matter has come before the Court on Notice of Motion by Defendants [Doc. 386-1], Michael D. Rozos, Earline Boyer, Alan Friess, Norman Uzzle, and David McLean ("INS Defendants") presenting a bill of costs and disbursements, pursuant to Federal Rule of Civil Procedure 54(d) and Local Civil Rule 54.1; and Plaintiffs Hawa Adbdi Jama, Jeyakumar Anantharajah, Abu Bakar, Abraham Kenneh, Dennis Raji, Agatha Serwaa, Sarah Teteh Yower, Cecilla Kou Jeffrey, and Shamimu Nanteza ("Plaintiffs")*fn1 having contested same.
The Court granted final judgment in favor of INS Defendants in this hotly contested matter on February 14, 2005. Under Federal Rule of Civil Procedure 54(d), a prevailing party is entitled to costs unless the court otherwise directs.*fn2 Rule 54(d) creates a "strong presumption that costs are to be awarded to the prevailing party." In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 462; see also Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981). In other words, if the judgment is silent as to costs, the presumption is that costs is taxed against the losing party. Id. The INS Defendants are the prevailing party within the meaning of Federal Rule Civil Procedure 54(d). See 10 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2667 (1998) ("[A] dismissal of the action, whether on the merits or not, generally means the defendant is the prevailing party. . . . A party who is only partially successful also can be deemed a prevailing party."). Additionally, the Third Circuit has held that costs can be awarded for depositions used in litigation where summary judgment was granted.
In re: Baby Food Antitrust Litigation, 166 F.3d 112 (3d Cir. 1999). Otherwise, the Court noted, the prevailing party would be penalized for winning in the early stages of the proceedings. Id. at 139.
Plaintiffs' oppose INS Defendants' motion on two grounds. First, Plaintiffs contend that: a) The motion is time barred under Local Civil Rule 54.1(a); b) The motion fails to specify the specific hour that the application for costs will be made; and c) The motion does not contain a verification or affidavit as required under 28 U.S.C. § 1924 and Local Civil Rule 54.1. Second, they argue that INS Defendants are not entitled to costs because of the complexity of the litigation, the disparity of wealth between the parties, the Plaintiffs' inability to pay costs, and the INS Defendants' dilatoriness and unclean hands. (Pls.' Opp'n filed March 18, 2005.)
The Clerk will initially address Plaintiffs' first ground for opposition. The INS Defendants' motion was filed on March 17, 2005. Plaintiffs' contend that the 30 days in which INS Defendants had to file their motion, under L. Civ. R. 54.1, expired on March 16, 2005. Local Civil Rule 54.1(a) requires the bill of costs and notice of motion be filed "within 30 days after the entry of a judgment allowing costs." (emphasis added). The key word contained in the above sentence is the word "entry." In some instances, as in this matter, the "entry" date, the date the order or judgment was actually placed on the docket, comes after the "filed" date, the date the Judge issued the order or judgment and filed the document with the Clerk's Office. Rules that require a deadline to act, such as L. Civ. R. 54.1, will require action by the "entry" date as opposed to the filed date.*fn3
The record reflects that the Order granting final judgment in this matter was filed on February 14, 2005, but not entered on the docket until February 16, 2005. Accordingly, INS Defendants' motion for costs filed March 17, 2005 is considered timely filed under L. Civ. R. 54.1 because the motion was filed within 30 days after entry of the judgment.
Plaintiffs' next argument is that the motion of INS Defendants should be denied because it failed to specify the time or hour that the motion would be returnable before the Court. While the motion did include a return date, it did not state the hour it would be made, as required under L. Civ. R. 54.1(d). The Clerk will not penalize the moving party for this omission, as it finds the inclusion of the return date sufficient to satisfy the requirement, since the Notice of Motion did include a return date.
Plaintiffs further contend that the motion of INS Defendants should be denied because the motion did not contain an affidavit asserting the accuracy and necessity of the costs as required by 28 U.S.C. § 1924. Similarly, L. Civ. R. 54.1(b), requires that:
Such Bill of Costs shall precisely set forth each item thereof, so that the nature of the charge can be readily understood, and shall be verified by the attorney for the applicant, stating that the (1) the items are correct, (2) the services were actually and necessarily performed, and (3) disbursements were necessarily incurred in the action or proceeding. Counsel shall append to the verified Bill of Costs copies of all invoices in support of the request of each item.
The motion filed by the INS Defendants does not comply with L. Civ. R. 54.1(b) in its entirety. For example, while the motion does include copies of invoices, it does not describe in any detail whether the services rendered on behalf of those Defendants were actually necessarily performed. Rather, 26 copies of invoices in the amount of $31,691.25 are annexed to the motion with no explanation. However, attached to the motion is Court form "AO 133 Bill of Costs" that provides for the signature of the attorney and includes the following language "I declare under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action. . . ." The Clerk will not deny this motion based on Defendants failure to fully comply with L. Civ. R. 54.1(b) because the attorney's signature on the above-mentioned Court AO form constitutes the necessary verification by the attorney. Nonetheless, it seems that a party seeking $31,691.25 in costs, would have followed L. Civ. R. 54.1 in its entirety and explain why each expense was necessarily performed in this matter.
The Clerk will now address Plaintiffs' arguments asserted in their second ground, that INS Defendants are not entitled to costs because of the complexity of the litigation, the disparity of wealth between the parties, Plaintiffs' inability to pay costs and the Defendants' dilatoriness and unclean hands. (Pls.' Opp'n filed March 18, 2005.) "[T]he losing party bears the burden of making the showing that an award is inequitable under the circumstances." Paoli, 221 F.3d at 462-63.
In determining whether a party meets its burden, the following factors can be considered:
(1) the prevailing party's unclean hands, bad faith, dilatory tactics, or failures to comply with process during the course of the instant litigation or the costs award proceedings; and (2) each of the losing parties' potential indigency or inability to pay the full measure of a costs award levied against them. A court may not consider (1) the losing parties' good faith in pursuing the instant litigation (although a finding of bad faith on their part would be reason not to reduce costs); (2) the complexity or closeness of the issues--in and of themselves--in the underlying litigation; or (3) the relative disparities in wealth between the parties. (emphasis added). Id. at 468.
The Clerk is not in the position to address Plaintiffs' arguments that costs should be denied because of INS Defendants' unclean hands, bad faith, and dilatory tactics. This issue is best left with the judicial officer who heard the case. Likewise, the Clerk will also not address Plaintiffs' arguments that INS Defendants' motion should be denied because of the good faith of the losing party and the relative disparity of wealth between the parties. The Clerk reads Paoli to hold that a court may not consider these two factors when considering whether a costs award is equitable. Even if a Court could consider these two factors, the Clerk, unlike ...